How to Seal Arrest Records Per Penal Code section 851.91, et. seq

On October 11, 2017, Governor Jerry Brown approved SB-393.[1] SB-393 took effect on January 1, 2018 and added Section 851.91 to the Penal Code.

Penal Code section 851.91 now provides a mechanism for a person who has suffered an arrest that did not result in a conviction to petition the court to have his or her arrest sealed pursuant to Penal Code section 851.92, under certain circumstances.

For purposes of Section 851.91, “an arrest did not result in a conviction” if any of the following are true:

· The statute of limitations has run on every offense upon which the arrest was based and the prosecuting attorney of the city or county that would have had jurisdiction over the offense or offenses upon which the arrest was based has not filed an accusatory pleading based on the arrest.

· The prosecuting attorney filed an accusatory pleading based on the arrest, but, with respect to all charges, one or more of the following occurred:

o No conviction occurred, the charge has been dismissed, and the charge may not be refiled.

o No conviction occurred and the arrestee was acquitted of the charges.

o A conviction occurred, but has been vacated or reversed on appeal, all appellate remedies have been exhausted, and the charge may not be refiled.

Depending on the unique factual circumstances of each individual petitioner, a petition under this section may be granted as a matter of right or in the interests of justice. Generally, a petitioner is entitled to relief under this section as a matter of right unless the offense upon which the arrest was based involved domestic violence, child abuse, or elder abuse charges.

According to Section 851.91(a)(2), a person is ineligible for relief under this section if:

· He or she could still be charged with any of the offenses upon which the arrest was based.

· Any of the arrest charges is a charge of murder or any other offense which has no statute of limitations – with exceptions.

· The petitioner intentionally evaded law enforcement efforts to prosecute the arrest.

· The petitioner intentionally evaded law enforcement efforts to prosecute by engaging in identity fraud (under certain circumstances).

The Judicial Council has not yet released a form to be utilized by petitioners when seeking relief under Section 851.91. However, the language of Section 851.91 itself identifies what must be contained in the petition in order to seek relief. The initial burden is on the petitioner to show that he or she is entitled to relief under this section.

If the petition is granted, the arrest is deemed never to have occurred and the petitioner is generally released from all penalties and disabilities resulting for the arrest.

Although an arrest may not have resulted in a conviction, it can still cause issues with employment and obtaining certain licenses. The addition of Penal Code section 851.91 to the Penal Code has created a great way for people arrested and never convicted to seal their arrest!

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